Visual Scene v. PILKINGTON BROS., Plc.

508 So. 2d 437, 12 Fla. L. Weekly 1297
CourtDistrict Court of Appeal of Florida
DecidedMay 19, 1987
Docket87-413
StatusPublished
Cited by32 cases

This text of 508 So. 2d 437 (Visual Scene v. PILKINGTON BROS., Plc.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Visual Scene v. PILKINGTON BROS., Plc., 508 So. 2d 437, 12 Fla. L. Weekly 1297 (Fla. Ct. App. 1987).

Opinion

508 So.2d 437 (1987)

VISUAL SCENE, INC., Myron Orlinsky and Peter Patraka, Petitioners,
v.
PILKINGTON BROTHERS, Plc., Chance Pilkington Limited, and Metro Corp., Respondents.

No. 87-413.

District Court of Appeal of Florida, Third District.

May 19, 1987.
Rehearing Denied June 30, 1987.

*439 Cypen & Cypen and Wayne A. Cypen, Wilmer, Cutler & Pickering and Roger M. Witten, M. Carolyn Cox, Bruce M. Berman, James Sottile IV and Mark J. Leimkuhler, Washington, D.C., for petitioners.

Morgan, Lewis & Bockius and William L. Gardner and Peter Buscemi, Washington, D.C., and Lowell L. Garrett and Nancy A. Copperthwaite, Miami, Bailey, Dawes & Hunt and Mercedes C. Busto, for respondents.

Before BARKDULL, NESBITT and DANIEL S. PEARSON, JJ.

DANIEL S. PEARSON, Judge.

The petitioner Visual Scene, Inc. (VSI), a plaintiff in the trial court,[1] seeks review by certiorari of an order compelling it to produce certain documents which it claims are protected from discovery by the attorney-client and work product privileges. The respondents Pilkington Brothers, plc. (Pilkington) and its wholly-owned subsidiary, Chance Pilkington, Ltd. (Chance), successfully argued below that because the documents in question recount communications concerning the litigation between VSI, the plaintiff, and its adversary, Metro Corp., a defendant, no theory of "joint defense" privilege[2] can obtain, and the documents are discoverable. Finding that the trial court's ruling departs from the essential requirements of the law, we grant the petition for writ of certiorari and quash the order under review.

I.

VSI, a distributor of non-prescription sunglasses to drugstores throughout the United States, sued the respondents Pilkington and Chance and a third defendant, Metro, alleging, in essence, that Chance supplied defective photochromic glass blanks to Metro and that Metro negligently processed the glass. It appears from the ensuing counterclaims and cross-claims that Pilkington and Chance maintain that the lenses were not defective, but that they were negligently processed and stored by Metro and that VSI exacerbated any problem by improperly handling the finished sunglasses; Metro (agreeing to this extent with VSI) maintains that the glass supplied by Chance was defective and, predictably, that Metro was free from negligence. Thus, VSI and Metro are united in their respective claims that the glass manufactured *440 by Chance was defective, although, as VSI has freely conceded, its "interests in this litigation are opposed to Metro's in significant respects," that is, VSI intends to prosecute its claim that Metro was negligent in processing the glass supplied by other defendants. It is in this not unusual setting that the assertions of privilege against the Pilkington and Chance request for production must be judged.

II.

A.

It is well understood that matters that are covered by the attorney-client privilege retain their privileged status until the protection of the privilege has been waived by the client. In most cases, a voluntary disclosure to a third party of the privileged material, being inconsistent with the confidential relationship, waives the privilege. United States v. American Telephone & Telegraph Co., 642 F.2d 1285 (D.C. Cir.1980). An exception to this general waiver rule, variously called the "common interests," "joint defense," or "pooled information" exception, enables litigants who share unified interests to exchange this privileged information to adequately prepare their cases without losing the protection afforded by the privilege. See Western Fuels Association v. Burlington Northern Railroad Co., 102 F.R.D. 201 (D.Wyo. 1984), and cases cited. Under this exception, clients and their respective attorneys sharing common litigation interests may exchange information freely among themselves without fear that by their exchange they will forfeit the protection of the privilege.[3] Since persons with common litigation interests are likely to have an equally strong interest in keeping confidential this exchanged information, the common interests exception to waiver is entirely consistent with the policy underlying the privilege, that is, to allow clients to communicate freely and in confidence when seeking legal advice. Quite obviously, when a member of the common interest group discloses this information to a non-member, a waiver of the privilege, as in the ordinary case, occurs.

Courts have recognized the common interests exception where the group members were criminal co-defendants, United States v. McPartlin, 595 F.2d 1321 (7th Cir.1979); Hunydee v. United States, 355 F.2d 183 (9th Cir.1965); civil co-defendants, Western Fuels Association v. Burlington Northern Railroad Co., 102 F.R.D. 201; In re LTV Securities Litigation, 89 F.R.D. 595 (N.D.Tex. 1981); companies that had individually been summoned before a grand jury, Continental Oil Co. v. United States, 330 F.2d 347 (9th Cir.1964); co-parties to potential litigation, In re LTV Securities Litigation, 89 F.R.D. 595; members of a class of plaintiffs pursuing separate litigation in state and federal courts, Schachar v. American Academy of Ophthalmology, 106 F.R.D. 187 (N.D.Ill. 1985); and defendants being sued in separate actions, Transmirra Products Corp. v. Monsanto Chemical Co., 26 F.R.D. 572 (S.D.N.Y. 1960). While it is true, as Pilkington and Chance contend, that no court has extended the common interests exception to protect communications between a plaintiff and a defendant and their attorneys, neither has any court yet been called upon to address the question now before us, namely, whether the claims of both the plaintiff VSI and the defendant Metro, that glass supplied by the defendants Pilkington and Chance was inherently defective, demonstrate sufficient commonality of interest to permit a pooling of information between VSI and Metro without the loss of the protection of the attorney-client privilege, notwithstanding VSI's claim, hostile to Metro, that Metro was negligent in processing this defective glass.

Although, as we have said, the precise question presented by this case has not yet been addressed, we think the answer to the *441 question is strongly suggested by decisions that conclude that the common interests exception applies where the parties, although nominally aligned on the same side of the case, are antagonistic as to some issues, but united as to others. For example, in United States v. McPartlin, 595 F.2d 1321, McPartlin, a state legislator, and Ingraham, a corporation chairman, among others, were indicted for bribery in connection with a sludge-hauling contract. Benton, an unindicted co-conspirator, was to testify for the prosectution. Although the defenses of Ingraham and McPartlin were otherwise incompatible, it was important to both that Benton's credibility be undermined. To that end, an investigator for Ingraham's attorney interviewed McPartlin.

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Bluebook (online)
508 So. 2d 437, 12 Fla. L. Weekly 1297, Counsel Stack Legal Research, https://law.counselstack.com/opinion/visual-scene-v-pilkington-bros-plc-fladistctapp-1987.